In recent years, mainstream anti-domestic violence programs have moved away
from a fixation on the criminal justice system to undertake economic justice initiatives
designed to “respond to, address, and prevent financial abuse” related to
domestic violence. The shift reflects the growing realization that
strategies of remedy through the penal state have tended to fracture the
domestic violence movement and marginalize disenfranchised populations,
particularly poor communities and communities of color. As programs have
endeavored to refocus their efforts, advocates have properly identified consumer
credit as a critical issue to address, as credit problems are a frequent, if
underappreciated, effect of domestic violence. Indeed, as consumer debt has
become a way of life, credit problems affect a victim’s chances of purchasing
or renting a home, obtaining utilities, finding affordable car and home
insurance rates, and accessing employment opportunities. The solution to these
economic challenges lies within the realm of political economy. An LPE approach
would conceptualize how current political and economic arrangements affect
victims—as well as abusive partners—and thereby to assess justice strategies in
relation to structural capitalist economic modalities.

N.B.: Sharon Block and Benjamin Sachs posted a response to Part II of Veena Dubal’s pieces (here’s Part I) comparing solidarity unionism with company unions. In the spirit of debate, we’re cross-posting from On Labor.

Sharon Block and Benjamin Sachs –

In her second post on the Uber/Lyft drivers’ association, Veena Dubal rightly celebrates the success of the recent Uber/Lyft work stoppages. The example of workers, who have no labor or employment law rights, engaging in the kind of collective action that she describes is inspirational. Dubal also raises some important criticisms of the IDG, criticisms we take very seriously.

As Dubal recognizes, however, none of the actions by Uber and Lyft drivers have yielded collective bargaining rights, yet. So the question is what is the best path forward toward the securing of those rights. We agree with Dubal that winning union status and collective bargaining power at Uber and Lyft will depend critically on the continuation of the kind of solidarity actions that Dubal describes. But, in our view, a fundamental reshaping of labor law (at the state or federal level) will also be necessary. Unfortunately, even if an “uncompromised” version of California AB 5 passes, that won’t get us there. Although that bill would constitute enormous progress, it would not on its own equip Uber and Lyft drivers to organize and bargain collectively.

Hidden beneath the buzz about how technology is transforming urban transit is a quiet revolution in the way that cities approach the management of their streets. In the face of rapid change, cities and transit agencies are increasingly relying on pilot programs to manage the introduction of new modes of transportation and new uses of the right of way. Pilot approaches have spread through all regions of the country and are utilized by cities of all sizes and for numerous applications including dockless bike share, autonomous buses, micro-transit, delivery robots, and smart streetlights.

It’s important to appreciate how the pilot approach departs from how cities typically regulate and manage urban transportation problems. The public sector often makes slow decisions and avoids risks. But that stability can be a disadvantage if it ossifies and can’t accommodate changes to the system. Without compromising cities’ ability to use public funding, exercise regulatory authority, and pursue the public’s interest, pilots provide cities and transit agencies with flexibility. They give cities a safe space to try new approaches while managing the potential chaos of new technologies.

In a recent video, “A Message From the Future,” Rep. Alexandria Ocasio-Cortez’s voiceover imagines a time when climate collapse has been averted. Now a seasoned member of Congress, she rides the bullet train to the Capitol. It’s a whimsical opening to a compelling narration. But it raises two important questions: first, will the Green New Deal (GND) come all at once? And second, will it come riding high-speed rail or the lowly city bus?

The two questions, it turns out, are connected.

Ocasio-Cortez’s Green New Deal resolution is structured around five goals: (A) carbon neutrality and a just transition, (B) creation of millions of good-paying jobs, (C) investment in sustainable infrastructure, (D) achievement of a healthy and sustainable environment, and (E) “stopping current, preventing future, and repairing historic oppression” of “frontline and vulnerable communities.”

The first thing to say about the logic of these goals is that every dollar of massive new public investment spent under a GND policy framework, whether at the federal level or at smaller geographic scales, would deliver public infrastructure or services, while simultaneously creating good-paying jobs, cutting carbon pollution, and addressing historic oppression of “frontline and vulnerable communities.” (I’ve written separately about the significance of the resolution’s definition of “frontline and vulnerable communities,” and a framework for addressing their historic oppression in the context of a GND).

These principles should apply to local investment as much as to federal funding. Indeed, the GND resolution should be understood not only as a comprehensive federal program, but more immediately as a policy template that working people, through struggle, can strive to apply to any large source of funding.

In the year 2000, the writer Joan Wypijewski visited Montgomery, Alabama, to observe the 45th anniversary of the Montgomery bus boycott. Her findings were notable: “Montgomery’s transit system isn’t segregated anymore. It barely exists.”

As Wypijewski told readers, the 1990s had not been kind to transit. After two decades of local Republican leadership, and following the elimination of federal transit operating assistance in 1996, Montgomery’s transit system had become a shadow of its former self. In 1997, the situation reached its nadir when the city decided to scrap its fixed route bus service altogether, replacing it with a cost-saving dial-a-ride service called DART. DART provided door-to-door service to local residents upon request, but required that these residents schedule their trips 24 hours in advance. As Wypijewski reported, the system was hardly popular. Not only were there dropped appointments, longer commutes, and overworked drivers, but it marked the end of what had been a “‘family of riders,’ the easy culture of transfers and [a shared] culture of urban mobility”. When Wypijewski published her exposé in 2000, Montgomery’s new Democratic leadership was already in the process of re-establishing a fixed route bus service. Even with change on the horizon, Wypijewski’s larger argument remained an important one. Here we might quote her directly:

“Today’s system is a spawn of the New South, which is not so much new or distinctly southern as it is an accommodation to the all-American way of racism—bigotry muffled for the sake of business, white privilege wrapped in the language of investment. As elsewhere across the country, whites in Montgomery abandoned the urban center and its services. With budgets shrinking, neglect of city schools, hospitals and transit could proceed as a ‘cost benefits decision.’”Continue reading →

The Supreme Court has waged a multi-decade war on private rights of action. It has subverted the rights of consumers, workers, small businesses, and others to hold corporations accountable for wrongdoing through lawsuits. The Federal Arbitration Act (FAA) has been a preferred tool of the Court. Since the 1980s, it has reinvented this modest statute, converting the FAA into a quasi-constitutional sledgehammer for corporations to wield against private lawsuits, especially class actions. And the evisceration of private enforcement of law goes beyond arbitration. The Court has rewritten class certification, pleading, and summary judgment standards to help businesses ward off private lawsuits and accountability.

On top of these general procedural hurdles, the Supreme Court has imposed special burdens on parties seeking to vindicate their rights under the federal antitrust laws. Congress enacted an expansive private remedy originally in the Sherman Act and subsequently in the Clayton Act. Section 4 of the Clayton Act grants “any person” injured by an antitrust violation the right to recover treble damages and legal fees from the violator. Since the 1970s, however, the Supreme Court has effectively rewritten this text. While once recognizing that Section 4 “is comprehensive in its terms and coverage, protecting all who are made victims of the forbidden practices by whomever they may be perpetrated[,]” the Court has severely restricted who can enforce the antitrust laws. Two doctrines deserve special consideration. First, the Court held that, in general, only parties who purchased a good or service directly from the antitrust violator can obtain damages for overcharges. Second, it created the amorphous “antitrust injury” doctrine and granted the lower courts the power to dismiss disfavored substantive claims on supposedly procedural bases.

These procedural changes raise the age-old question: what good is substantive law if it cannot be enforced? The described procedural changes have not affected the substantive law (though the courts have done that too in certain areas) but it has prevented some of the most motivated parties from enforcing the law. Consumers and businesses injured by antitrust violations have long been the lead enforcers of the antitrust laws. Their role is only accentuated by the Department of Justice and Federal Trade Commission’s unwillingness to enforce multiple areas ofantitrustlaw. This combination of judicial hostility to private cases and bureaucratic lethargy has turned much of the substantive law into a dead letter.

NB: This post is part of the “Skepticism About Information Fiduciaries” symposium. Other contributions can be found here.

Tamara Piety –

I was delighted to read Lina M. Khan and David E. Pozen’s recent article, A Skeptical View of Information Fiduciariesdescribing the reasons to be skeptical of the “information fiduciary” concept as a promising one for solving the problems posed by giant companies like Facebook. As Khan and Pozen point out, its proponents are a bit fuzzy about the details of how to reconcile these for-profit companies’ existing duties to shareholders, with some kind of fiduciary duty to users. The users’ attention is what these companies are selling. Khan and Pozen are skeptical that such a fundamental conflict can be resolved and I agree.

I only have a couple of additional points:

(1) Before looking to import the concept of a “fiduciary” to this new application, we might ask how well that concept has worked, as a means to check anti-social behavior, in the areas in which it has traditionally applied. If that area is corporate law where officers and directors are said to have fiduciary duties to the corporation and its shareholders, the answer is “Not very well.” It does not seem to have deterred much corporate misconduct.

(2) Although Khan and Pozen rightly observe that Facebook does more than sell passive viewers to its advertisers, it uses the data it collects from those users to construct or identify vulnerabilities that go far beyond the information asymmetry as it conventionally is understood in the fiduciary concept, in their discussion of the problems that the information fiduciary concept is meant to solve, they note (18-19) that many of these problems are already “proscribed by existing consumer protection laws,” they may not be confronting the degree to which Balkin, et al. may be attempting to offer alternative rationales for that existing consumer protection law given that it is no longer resting on as firm a foundation as in the past. However, the Supreme Court has been increasingly hostile to the government’s attempt to regulate any speech at all and increasingly willing to use the First Amendment as a weapon of deregulation. As Khan and Pozen note, to the extent that other arguments for special status or duties as a way to end run the Court’s more aggressive, the Supreme Court has not signaled much receptiveness to this approach.

Save the date: We are excited to announce that the inaugural conference of the recently launched Law and Political Economy Project will take place April 3rd and 4th of 2020 at Yale Law School. We hope you will be able to join us to share and expand the exciting scholarship being done within the larger law and political economy movement. More details to come!

NB: This post is part of the “Piercing the Monetary Veil” symposium. Other contributions can be found here.

Donatella Alessandrini —

Even amongst critical scholars, there is a tendency to treat international regulation of money and finance as “strictly economic”, distinct from the “social” domains of labor, the environment, and socio-economic rights. This conceptual separation cedes the realm of finance to the “neutral” neoliberal technocracy while occluding interrelationships between finance, production, and social reproduction. Placing social reproduction at the center of our analysis forces us to overcome these false dichotomies and confront finance’s role in the shaping of the “social”.